PEOPLE v. SUPERIOR COURT OF LOS ANGELES COUNTY (1941)

Respondents' petition for a hearing after judgment by the District Court of Appeal is denied.

In my opinion, respondents' petition for a hearing should be granted and this case should be heard and determined by this court. The background forming the basis for the decision here in question is that the State of California commenced an action in eminent domain against Frank Monteleone and wife, and others to condemn various parcels of land and right of access therefrom, to and onto the public highway. The property was sought to be thus acquired for highway purposes. Upon commencement of the action the state, pursuant to Article I, Section 14 of the Constitution of California, obtained an order for immediate possession of the property and rights to be taken and damaged, and took possession of the same thereunder. Thereafter, the state proceeded with and completed the construction of the highway. Defendants' property involved in that action abuts on Cottage Home Street, a short street in Los Angeles, which stopped at a hill on one end and intersected Figueroa Street at approximately a right angle on the other end. There are no cross streets intersecting Cottage Home Street between the points above-mentioned and the only means of access to that street and to the property abutting thereon was Figueroa Street. The state's plan of construction as set forth in its complaint in the action called for the taking and using of a portion of the side of defendants' lot for a foundation for a fill, the plan being that the improvement of Figueroa Street would require its elevation to a point 14 feet higher than that formerly existing. After commencement of the action, the state changed its plan in that the sides of Figueroa Street where that street crossed Cottage Home Street would consist of perpendicular concrete walls thus eliminating the necessity of a resting place for the toe of a fill on defendants' lot. It proceeded to grade Figueroa Street in that fashion with the result that defendants' property is on a street which is closed by a hill at one end, and a 14 foot wall along Figueroa Street at the other. All right of access from defendants' property to Figueroa Street is thereby destroyed. Thus, the state in no way abandoned or discontinued its project to take defendants' right of access and damage their property. On the contrary it proceeded according to plan to accomplish and did accomplish that precise result. After all this had transpired, the state then filed a notice of motion to dismiss its condemnation action as to defendants. To that motion defendants pleaded equitable estoppel, and the trial court denied the motion. In the instant proceedings the District Court of Appeal granted a writ of mandate compelling the trial court to grant the motion to dismiss.

The statutory authority for the dismissal by a condemner of its action in eminent domain is Section 1255a of the Code of Civil Procedure. Although this section authorizes the abandonment of the ‘proceedings' by the condemner, I think it is clear that it was not contemplated that it should be applicable when the condemner has already under authority of its action taken or damaged the property involved therein. Furthermore, the word ‘proceedings' is sufficiently comprehensive to include the execution of the improvement by the condemner. In the case at bar the state has not abandoned its project, the basis of its action, but has carried it to completion. It did not dismiss as to the other defendants, and therefore the proceedings are not abandoned.

The defendants' right of access, a real property right, has been taken, and as a result thereof their lot has been damaged. There is and can be no dispute about that. Title to that right of access has passed to the state. There is no logical reason, just or otherwise why the defendants should be compelled to initiate an action on their own behalf to obtain the just compensation to which they are apparently entitled under the constitutional guarantee. Let us suppose that a condemner acquired possession of property upon which there were extensive and valuable improvements by virtue of its eminent domain action. Thereafter, but before the trial of the action, the condemner commences construction of its project and in the process demolishes the buildings and makes deep excavations in the land. It then asks for a dismissal of the eminent domain action. Under the principles enunciated in the decision of the District Court of Appeal, the dismissal would be permitted. The land owner would be compelled to commence his action for damages and assume the burdens incident thereto. He would suffer delay in obtaining the compensation to which he is entitled, which would necessarily occur before the matter could be finally adjudicated. He could not recover interest on the amount of the award until the date of the judgment, even though the condemner had taken possession long prior thereto. This would deny to the property owner a right which this court held he was entitled to in Metropolitan Water District v. Adams, infra. Furthermore, the condemner might not be financially able to pay the amount of the judgment when recovered. There is no difference between that illustration and the case at bar. Here the defendants' right of access has been irrevocably taken and destroyed.

The decision of the District Court of Appeal is predicated upon the premise that the state may or may not, as it chooses, take or damage the owner's property in the exercise of its sovereign power of eminent domain, and thus may dismiss its action commenced in the aid of that power when it determines not to take or damage the property. As a general principle that is entirely sound. The fallacy exists in its application to the instant case. Here, although the state asserted in its motion to dismiss that it is not taking or damaging defendants' property, its actions speak with more force than its assertion. The facts as evinced by its actions show beyond cavil that it has already taken and damaged the defendants' property whatever it may claim to the contrary. It might logically follow from the judicial determination that the state may dismiss, that one of the factors adjudicated in the dismissal is that the state is not damaging or taking defendants' property, and when the owners claim in their subsequent action that the taking and damaging has occurred, the state will plead res judicata on that issue. The case of Pool v. Butler, 141 Cal. 46, 74 P. 444, relied upon by the District Court of Appeal is not in point because it is not concerned with a case where there was in fact a taking of damaging prior to the request for dismissal. In Metropolitan Water District v. Adams, 16 Cal.2d 676, 107 P.2d 618, there existed nothing more than a taking of possession by the condemner. There was no abandonment or dismissal in that case.

The decision of the District Court of Appeal entirely ignores the case of People v. Joerger, 12 Cal.App.2d 665, at page 668, 55 P.2d 1269, at page 1271, where the rule is stated:

‘It follows that if entry into possession by plaintiff under the order mentioned, and the various acts of ownership performed by plaintiff constitute a ‘taking,’ then appellants were entitled to the compensation. Our Supreme Court has decided very definitely that the act of the state in entering into possession of the property and proceeding to construct the highway was a ‘taking’ of the property as that term is used in the provisions of the Constitution above quoted. [Emphasis added.] In 1897 the Legislature of California * * * attempted to place in the Code of Civil Procedure by an amendment to section 1254, a law which is almost identical to the amendment of section 14, article 1 of our Constitution, adopted in 1918. The constitutionality of section 1254 was challenged in the case of Steinhart v. Superior Court, 137 Cal. 575, on page 577, 70 P. 629, 630, 59 L.R.A. 404, 92 Am.St.Rep. 183. The court there states, that the most important proposition is whether or not taking possession and using the property during the pendency of the condemnation proceeding is a taking, within the meaning of the Constitution. In disposing of the matter, the court says: ‘To hold that possession of land may be given to a person seeking to acquire a right of way by condemnation, during the pendency of the proceeding, and before the amount of compensation has been determined and paid to the owner, or into court for him, would be to hold that this so-called temporary possession is not a taking of private property for a public use. But both on authority and reason it is so.’ The section was held unconstitutional, and the trial court was prohibited from making any order for possession thereunder. Once before the precise point came up in the Supreme Court. In 1863 the legislature attempted to give the railroads this same power of possession, pending an action in condemnation. In the case of Davis v. San Lorenzo R. Co., 47 Cal. 517, the enactment was held unconstitutional, and we find the following language pertinent to the question here involved: ‘However the rule may be in respect to the time at which the entire title and estate of the owner will be deemed to have been taken for public use, it is indisputable that the qualified estate which the corporation acquires when it enters under the authority of the Court must be deemed a taking pro tanto, from the time the entry.’ These cases follow the general rule. ‘It may be stated as a general rule that there is a taking where the grantee of the power of eminent domain enters upon the land, not for the mere purpose of examination of survey, and does some act evidencing an intention to appropriate it.’ 20 C.J., p. 723, § 182. The evidence of an intent upon the part of the plaintiff in the instant case to ‘appropriate’ the property of appellants is overwhelming and beyond dispute.'

The fundamental rules on this subject are stated in 20 Corpus Juris at page 1078:

‘The abandonment (dismissal by the condemner) must be in good faith and must be a complete surrender of the project so far as the land involved is concerned. The condemning party cannot resort to experimental suits and assessments, nor can it, while persisting in the avowal of its purpose to condemn the land, withdraw from the inquisition and the judgment thereon because dissatisfied with the result, in order to seek by other methods to procure a smaller valuation of the desired property. And where an abandonment of the proceedings would violate a contract made with the owner or private rights have otherwise attached which would be prejudiced by the abandonment, it will not be allowed.’

The effect of the decision of the District Court of Appeal in this case and the order of this court denying a hearing therein is to permit the state or any of its political subdivisions to take or damage private property for a public use by means of the artifice or device of commencing an action in eminent domain to condemn such property, obtain an order for immediate possession thereof, construct the public improvement contemplated, and then before the action is tried and the amount of compensation and damages to which the property owner is entitled are determined, dismiss the action, withdraw the amount deposited as security to the property owner upon obtaining the order for possession, and relegate the property owner to an action for damages for the taking and damaging of his property in violation of Section 14 of Article I of the Constitution of California. I am firmly of the opinion that such procedure was never contemplated by the framers of our Constitution or the Legislature in enacting the Code provisions under which it is now claimed by petitioner it is permissible, and it is clear to my mind that such constitutional and statutory provisions are not susceptible of the interpretation contended for by petitioner.

In my opinion the trial judge was right in denying plaintiff's motion to dismiss the action and petitioner's application for a writ of mandate should likewise be denied.

PER CURIAM.

CARTER and HOUSER, JJ., dissenting.